No. 95-4229

 

Wade Backlund, on Behalf of *

Himself and All Other Persons *

Similarly Situated, *

*

 Appellant, *

* Appeal from the United States

 v. * District Court for the 

 * District of Minnesota.

Neal J. Hessen, Mary Peterson, *

and Janet Nelson, in Their *

Official Capacity as Commissioners*

of the Civil Service Board of *

the City of Duluth, Minnesota; *

Karl Nollenberger, in His *

Official Capacity as Secretary *

and Responsible Authority of the *

Civil Service Board of the City *

of Duluth, Minnesota; Duane *

Flynn, in His Individual Capacity *

and in His Official Capacity as *

Chief of the Fire Department of *

the City of Duluth, Minnesota; *

Civil Service Board of the City *

of Duluth, Minnesota, a Political *

Subdivision of the City of Duluth *

and State of Minnesota; and City *

of Duluth, Minnesota, a Municipal *

Corporation and Political *

Subdivision of the State of *

Minnesota, *

*

 Appellees. *

 

 Submitted: October 23, 1996

 Filed: January 14, 1997 

 

Before RICHARD S. ARNOLD, Chief Judge, and FLOYD R. GIBSON and MORRIS

SHEPPARD ARNOLD, Circuit Judges.

 
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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Wade Backlund appeals the district court's dismissal of his claim of

employment discrimination. We reverse and remand.

I.

Mr. Backlund applied for a job as a firefighter with the City of

Duluth Fire Department ("Fire Department"). He earned the highest score

on a written examination and was placed first on a ranked list of eligible

candidates. This list determined which candidates could interview for

openings, and Mr. Backlund's ranking guaranteed him an interview for any

openings that occurred during the two years that followed his being placed

on the list. Firefighter positions became available twice during this

time, and Mr. Backlund, along with several other candidates, interviewed

for the openings on each occasion. Mr. Backlund was never offered

employment. After the second round of hiring, he learned that the Fire

Department had hired four firefighters, three of whom were related to

either present or former Fire Department employees. One was a son of an

assistant fire chief, the second was a brother of a captain, and the third

was both a son of a former fire chief and a brother of a training officer.

Mr. Backlund then sued, claiming that the Fire Department's hiring

practices violated various rights guaranteed to him by federal and state

law. In particular, Mr. Backlund alleged that the Fire Department

discriminated against him in violation of the Equal Protection Clause

because he is not related to any present or past Fire Department employees.

The defendants moved for dismissal or summary judgment; because it reviewed

materials outside the pleadings to resolve some of Mr. Backlund's claims,

the district court treated that motion as one for summary judgment and

granted summary judgment to the defendants. Since the district court did

not, however, appear to review any such materials to resolve
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Mr. Backlund's equal protection claim, which is the only claim before us,

we treat its resolution as a dismissal for failure to state a claim under

Fed. R. Civ. P. 12(b)(6). Because we believe that Mr. Backlund has stated

a claim under Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552

(1947), we reverse. 

In Kotch, aspiring river pilots challenged a Louisiana statute that

governed the appointment of river pilots. The statute required new pilots

to serve first as apprentices, and it gave control over the selection of

apprentices to river pilots themselves. These pilots selected primarily

relatives and friends as apprentices, thus discriminating against

applicants without family connections in the river piloting business. Id.

at 555. In upholding the statute, the Supreme Court examined the

relationship between this method of selecting pilots and the broad

objectives of Louisiana's pilotage law. Id. at 557. It emphasized that

river pilotage was "a unique institution and must be judged as such." Id.

Speaking of so-called "pilot towns," communities populated by relatives and

friends of pilots, the Court observed that in "these communities young men

have an opportunity to acquire special knowledge of the weather and water

hazards of the locality and seem to grow up with ambitions to become pilots

in the tradition of their fathers, relatives, and neighbors." Id. at 559.

The Court also alluded to "the benefits to morale and esprit de corps which

family and neighborly tradition might contribute," id. at 563, as

supporting a policy favoring relatives and friends as pilots. 

In concluding that the practice challenged in Kotch was

constitutional, the Court conceded the existence of "hypothetical questions

concerning [some] similar system of selection which might conceivably be

practiced in other professions or businesses regulated or operated by state

governments." Id. at 564. It reiterated the narrowness of its decision

by observing, in the last line of its opinion, that "considering the

entirely unique
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institution of pilotage in the light of its history in Louisiana," id., the

plaintiffs had not made out a case for the violation of their

constitutional right to the equal protection of the laws.

As we understand the district court's order in this case, it

dismissed Mr. Backlund's discrimination claim because it read Kotch as

holding that showing favoritism to relatives in hiring could never violate

the Equal Protection Clause. This reading, in our view, considerably

overstates the reach of Kotch. The Court in Kotch grounded its narrow

holding on the unique character of river piloting. It did not hold that

nepotism could never offend the Equal Protection Clause, it merely held

that it did not do so in the circumstances that Kotch presented. The class

of persons presumptively eligible for employment in Kotch, moreover, was

a good deal broader than the class alleged to have been eligible here,

because it included not merely relatives of the pilots but their friends

as well. Because Kotch requires nepotism in hiring to have a rational

basis, the district court erred when it dismissed Mr. Backlund's claim

without conducting a rational basis review. 

We believe that Kotch proceeds from the assumption that a general

associational preference for relatives, and a desire to help them, while

quite understandable and thus rational in some sense, is not a reason for

hiring someone that can withstand an equal protection objection. If it

were sufficient, or even of legal relevance, we are confident that the

Court would have said so. 

Rationality for equal protection purposes therefore evidently has a

somewhat specialized meaning when governmental employment is at issue. It

means more than that the employer must have a reason for its action. (It

is, in fact, hard to think of an action that does not have a reason.) A

government agent who refuses, for
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instance, to hire left-handed applicants might offer as a reason the fact

that he or she finds them sinister. However sincere as a subjective matter

the agent's preference for right-handed company might be, we are confident

that the Supreme Court would find his reason objectively unreasonable, and

actions based on it unconstitutional, even if the agent's job performance

were affected by the presence of left-handed workers. Whatever may be the

outer boundaries of the idea of rationality in this context, we think that

Kotch makes it abundantly clear that nepotism in governmental hiring

requires some measure of justification before it can pass constitutional

muster. Such justification must connect the challenged hiring criterion

to the capacity of the applicant to perform the duties of the job applied

for. That showing is absent from this record. Indeed, the record contains

nothing about the culture of firefighting and of firefighters, or the

unique requirements, if any, of the job. 

II.

Because we believe that Mr. Backlund has stated a claim under Kotch,

the district court erred when it dismissed his claim. We therefore reverse

and remand for further proceedings consistent with this opinion. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.